Excerpt: - motor vehicles act, 1988
[c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....orderg.k. misra, j. 1. the original application under section 81 of the representation of the people act, 1951, (hereinafter to be referred to as the act), was filed on 7-4-1967. an amnedment of the petition was allowed on 7-7-1967. on 16-8-1967 a consolidated petition incorporating the amendment was filed. the facts stated hereunder are with reference to this consolidated petition.2. ghasiram majhi (petitioner) and omkar singh (respondent) were the only two candidates who contested the assembly seat of the orissa legislative assembly from the newapara assembly constituency during the last general election held in february, 1967. 20-1-67 was the last date for filing nominations 21-1-67 was the date fixed for scrutiny of nominations. 21-2-67 was the date of poll. the results of the.....

Judgment:ORDER

G.K. Misra, J.

1. The original application under Section 81 of the Representation of the People Act, 1951, (hereinafter to be referred to as the Act), was filed on 7-4-1967. An amnedment of the petition was allowed on 7-7-1967. On 16-8-1967 a consolidated petition incorporating the amendment was filed. The facts stated hereunder are with reference to this consolidated petition.

2. Ghasiram Majhi (petitioner) and Omkar Singh (respondent) were the only two candidates who contested the Assembly Seat of the Orissa Legislative Assembly from the Newapara Assembly Constituency during the last general election held in February, 1967. 20-1-67 was the last date for filing nominations 21-1-67 was the date fixed for scrutiny of nominations. 21-2-67 was the date of poll. The results of the election were declared on 22-2-67. The petitioner polled 9829 votes while the respondent polled 10506 votes. The respondent was declared to have returned to the Orissa Legislative Assembly by a margin of 677 votes. The respondent was a candidate from the Congress party while the petitioner was from the Swatantra party. In paragraphs 5 to 7 of the petition, it was averred that the respondent took recourse to various corrupt practices for his success in the election. The respondent carried on large scale bribery to the electors of the constituency and all throughout the length and breadth of the constituency money was freely distributed by the respondent, his election agent and other persons with the consent of the respondent and his election agent with the object of directly or indirectly inducing the electors to vote in favour of the respondent at the election. In paragraphs 7 to 12 of the petition instances and particulars of various corrupt practices were mentioned. The details of the allegations would be referred to at the appropriate places in course of discussion.

In paragraph 13 of the petition, an averment was made to the effect that at the aforesaid election the respondent had employed 30 paid canvassers on or after the date of nomination and all such canvassers were provided with a bicycle each hired for the purpose by the respondent to carry on canvassing throughout the entire constituency and that each of the canvassers was paid about Rs. 75.00 excluding their fooding expenses which was at the rate of Rs. 1.00 per head per day. The respondent on this account incurred the total expenditure of RS. 3100 00 This amount was deliberately omitted in the accounts of election expenses submitted by the respondent. The expenses shown by the respondent come to Rs. 5041 50 paise and with the addition of Rs. 3100.00 the total expenditure would be in excess of the prescribed limit. The result of the election, in so far as it concerns the respondent has been materially affected due non-compliance with the provisions of the Act and Rules framed thereunder. The petitioner would have obtained a majority of the valid votes but for the aforesaid non-compliance and is to be declared to have been duly elected to the Orissa Legislative Assembly.

The petitioner accordingly prayed that the election of the respondent should be declared void and that the petitioner should be declared to have been elected.

3. The respondent denied the plaint averments in the written statement. It was expressly stated that he did not resort to any corrupt practice and that there was full compliance with the provisions of the Act and the Rules framed thereunder. The allegation that the respondent had engaged canvassers on payment of remuneration was denied.

4. Parties had filed Draft Issues. Issues were framed after hearing the learned Advocates. The Draft Issues, filed by the parties and not covered by the Issues framed, were abandoned by them. The following Issues were framed :--Issues :--

(i) Is it true that the respondent resorted to corrupt practices and bribery as alleged in the election petition?

(ii) (a) Did the respondent incur election expenses more than the prescribed limit?

(b) Did he fail to show some of his election expenses in the account of the election expenses?

(iii) Is the petitioner entitled in this proceeding to the relief of being declared aselected?

5. Issue No. (i) -

This issue relates to various corrupt practices alleged in the petition. Each of the corrupt practices would be separately dealt with.

6. In Paragraph 11 of the petition, the particulars of the corrupt practices alleged were mentioned thus-

Sri B.K. Bose, the election agent of the respondent made out gifts, promises and offers to the electors to vote in favour of the respondent He sent Rs. 100 to one Kamal Sen alias Singh sometime on or about the 17th of Feb 1967 for the purpose of distribution among the villagers of Nawapara and Khariar Road in order to induce them to vote in favour of the respondent and to induce other electors under their control to vote for the respondent. He further held out promises of payment by a letter dated 17-2-67 addressed to one Jagatpal for the purpose of inducing other ejectors and Jagatpal to vote for the respondent.

The facts stated in Paragraph 11 of the petition were denied in Paragraph 9 of the written statement Over and above the denial of the averments in Paragraph 11 word per word, it was stated that there is no such person as Kamal Sen and that Jagatpal is the brother of Sri Chandrabhan Singh, a member of the Swatantra party and that the story was invented with a purpose.

There is no satisfactory evidence on record that B.K. Bose (R.W. 1), who was admittedly the election agent of the respondent made gifts, promises or offers to the electors in order to induce them to vote in favour of the respondent except as revealed from the letter (Ex. 2) written by him to Jagatpal on 17-2-67 The letter runs thus -- My dear Jagatpal.

I just heard that some grumbling is there between your men and Jagmohan Naik for the non fulfilment of their promises. Any way Rs. 100 was paid to Kamal Sen by Jagmohan for distribution among you all. Whether they pay the rest amount or not you go on with your work. I am in hurry. I do not wish that for money the election work should suffer. I may not meet you tomorrow. Please see that there is no further grumbling for money to be paid by Omkar Singh or Jagmohan.

Yours sincerely

B.K. Bose

17-2-67

Though in Paragraph 9 of the written statement the story was said to be invented with a purpose, R.W. 1 admits to have written this letter.

7. Petitioner's case is that Jagatpal is the advocate's clerk of R. W. 1 (B. K. Bose) ever since the latter joined the bar and is continuing as a clerk till now Jagatpal worked for the Congress Party during the last election. Chandrabhan Singh, the Karta of Jagatpal's family belongs to Swatantra party. In Nawapara, the Swatantra party had strong influence. The respondent's election agent B.K. Bose and Jagmohan Naik, who was in charge of the election on behalf of the respondent, offered Rs. 500 to Jagatpal and his workers including Kamal Sen to cast their votes and to induce other voters to cast their votes in favour of the respondent against the petitioner. Jagmohar had promised Rs. 500 to be paid to Jagatpal. Out of this, Rs. 100 had been paid to Kamal Sen to be paid to Jagatpal Kamal Sen misappropriated this amount all alone and accordingly there was some rupture amongst the workers of Jagatpal which was likely to affect the election work of the respondent Accordingly B.K. Bose wrote the letter (Ex. 2) telling Jagatpal that out of the promised amount Rs. 100 had already been paid to Kamal Sen and the balance would be paid later on either by the respondent or by Jagmohan and that Jagatpal should wholeheartedly work for the respondent without minding immediate payment.

8 to 10. (After discussion of some evidence of P. W. 8 the judgment proceeded.) That the promise was to pay Rs. 500 as stated by P.W. 8 (Tejpal), gets some support from the admission of R. W. 1 in Paragraph 17 of his deposition that over and above the Rs. 100, referred to in Ex. 2, Jagatpal was demanding Rs. 300 to Rs. 400 which he did not exactly remember.

In Ex. 2 R.W. 1 stated-

Any wav Rs. 100 was paid to Kamal Sen by Jagatmohan for distribution among you all.

He backs out from this statement in Court and says that he did not see actual payment of the money. An admission is not conclusive unless it amounts to estoppel. It may be proved to be wrong, but unless so proved, it is a very strong piece of evidence against the maker thereof and is decisive of the matter, though not conclusive R.W. 1 does not depose as to the source of his knowledge on the basis of which he stated in Ex. 2 that Rs. 100 was paid to Kamal Sen. He furnishes absolutely no materials to prove that his clear and unequivocal admission that Rs. 100 was paid is wrong.

11 to 15. (After discussion of some more evidence. His Lordship proceeded).

16. The discussion on this part of the case may be summed up The petitioner came out with a clear story regarding payment of money and promise to pay money to Jagatpal and his workers including Kama] Sen for work to be done in the election for the respondent and a specific reference was made to the letter (Ex 2). It was open to the respondent to admit the letter and explain it by saying that though the respondent wanted the help of Jagatpal and his workers, the proposal failed as Jagatpal demanded money and that the contents of the letter (Ex. 2) were not true. Without giving such explanation the respondent averred that a false story was devised by the petitioner P. W. 8 appears to be quite reliable and his version gets substantial corroboration from the contents of Ex. 2 and the evidence of the aforesaid witnesses. The admission made in Ex. 2 has not been proved to be wrong I have no hesitation to record a finding that the respondent, his election agent B.K. Bose and Jagamohan Naik, who was in charge of the election, paid Rs. 100 and promised to pay Rs. 400 more for the work that was done by Jagatpal and his workers during election.

17. It is not the case of the respondent that payment was made to Kamal Sen or the promise of payment of further money was made for expenses of those persons incurred bona fide during the election. Obviously such a case cannot be presented in view of their complete denial of the story. It is clear from the evidence of R.Ws. 2 and 12 that the Swatantra party had much greater influence in Nawapara town than the Congress party. Jagatpal and his workers were residents of Nawapara town members of the Congress Seva Dal. Jagatpal is an advocate's clerk and Kamal Sen is a deedwriter. They wielded great influence in the locality. Besides, Jagatpal's work would counteract the influence of Chandrabhan Singh, his elder brother, who was a member of the Swatantra party. B.K. Bose had implicit confidence in Jagatpal who was working as his clerk. For all these reasons. B.K. Bose, Jagamohan and the respondent wanted to have and had the services of Jagatpal and his workers by payment of money and promise of further payment of money with the clear object of directly or indirectly inducing the electors to vote in favour of the respondent and to refrain from voting in favour of the petitioner.

18. The question for consideration is whether on such a finding any corrupt practice is made out.

19. The election of the respondent on this head is assailed as void under S. 100(1)(b) which runs thus -

Section 100. (1) Subject to the provisions of Sub-section (2), if the High Court is of opinion -

X X K X

X X X X

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent the High Court shall declare the election of the returned candidate to be void'.

Law is well settled that though the trial of the election cases is to be done in accordance with the provisions of the Civil Procedure Code the quantum of proof required for setting aside any election would be as in a criminal case. The burden of proving that the election of a successful candidate is to be set aside for corrupt practices lies heavily upon the petitioner. The corrupt practice and the fact that the successful candidate was responsible for the corrupt practice either by himself or through his election agent or other persons with his consent or the consent of the election agent must be established by cogent and reliable evidence beyond reasonable doubt (See AIR 1965 SC 183 Jagdev Singh v. Pratap Singh Para 12).

20. Section 123 of the Act deals with corrupt practices. The relevant provisions of the section are as follows-

'Section 123. The following shall be deemed to be corrupt practices for the purposes of this Act -

(1) 'Bribery' that is to say.

(A) Any gift offer or promise by a candidate or by any other person with the consent of the candidate or his election agent of any gratification to any person whomsoever, with the object directly or indirectly of inducing -

(b) an elector to vote or refrain fromvoting at an election x x x

X X X X

Explanation -- For the purpose of this clause the term 'gratification' is not restricted to pecuniary gratifications or gratification estimable in money and it includes all forms of entertainments and all forms of employment or reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of any election and duly entered in the account of election expenses referred to in Section 78'

A1 the end of Section 123 Explanation (1) runs thus-

'Explanation.-- (1) In this section the expression 'agent' includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate'.

It is well settled that the expression 'offer or bribery' in Section 123 must be given a very wide meaning and not a narrow construction in order to ensure that elections are held in an atmosphere of absolute purity (AIR 1967 SC 1445, Rajendra Prasad Jain v. Sheel Bhadra Yajee).

R.W. 9's evidence is that he was in charge of the entire election on behalf of the respondent. He acted in the election with the consent of the respondent and, as such, comes within the expression 'agent' as mentioned in Explanation (1) appended at the end of Section 123 already extracted.

The payment of Rs. 100 to R.W. 5 and the promise of further payment of Rs. 400 come clearly within the meaning of 'bribery' as given in Section 123(1)(A)(b). In this case, gratification is pecuniary. It is unnecessary to examine the scope of the second part of the Explanation as to the meaning of gratification. The money paid and promised was by R. W. 1, the election agent and R. W. 9, the agent. The respondent himself had consent thereto. With his knowledge the whole thing was being done. Even if the respondent had no consent. Section 123(1)(A)(b) in terms applies.

It has been found that the payment and the promise were with the object of directly or indirectly inducing the electors to vote in favour of the respondent and to refrain from voting in favour of the petitioner at the election Jagatpal and R.W. 5 were both electors. They were directly induced to cast their votes and to wield their influence with other electors to cast their votes in favour of the respondent Payment and promise of payment were not expenses bona fide incurred at the election and could not be so incurred in view of the defence taken. Had the payment constituted bona fide expenses it could have gone into the account of election expenses and a defence to that effect could have been taken and the matter could have clarified in evidence as to how the amount was to be spent so as to constitute bona fide expense. The object of the payment and the promise to pay was obviously to directly or indirectly induce the electors in the matter of exercising their right of franchise.

On the aforesaid analysis, I am clearly of opinion that the petitioner has established beyond reasonable doubt that the respondent resorted to a corrupt practice within the meaning of Section 123(1)(A)(b) of the Act. The election of the respondent is declared void under Section 100(1)(b) of the Act.

21-25. (After discussion of evidence with regard to other corrupt practices alleged. His Lordship proceeded). To sum up, the corrupt practices pleaded in Paragraphs 8, 9, 10 and 12 of the petition have not been substantiated. The corrupt practice averred in Paragraph 11 of the petition has been proved beyond reasonable doubt. Issue No. (i) is accordingly disposed of.

26. Issue No. (ii) (a) and (b) -- In Paragraph 13 of the petition corrupt practice under Section 123(6) was pleaded, though the section was not specifically referred to The averment runs thus --

That at the aforesaid election on or after the date of nomination the respondent had employed 30 paid canvassers and all such canvassers were provided with a bicycle each hired for the purpose by the respondent to carry on canvassing through the entire constituency and the canvassers were paid about Rs. 75 each excluding their foodings expenses which was paid at the rate of Re. 1 per head per day. The respondent on this account has incurred a total expenditure of about Rs. 3100. This sum of expenditure which has been incurred by the respondent, has been deliberately omitted in the account? of election expenses submitted by the respondent. That the respondent has shown a sum of Rs. 5,041-50 paise in the accounts of his election expenses and as such in view of the deliberate omission of the expenses mentioned above the respondent has incurred expenditure in excess of the prescribed limit.

In Paragraph 11 of the written statement the allegation has been denied

On the aforesaid averment, corrupt practice is alleged under Section 123(6) and the election of the respondent is sought to be declared void on the basis of Section 100(1)(d)(iv) and Section 100(1)(b).

Section 123(6) runs thus-

Section 123. The following shall be deemed to be corrupt practices for the purposes of this Act:--

X X X X

(6) The incurring or authorising of expenditure in contravention of Section 77. Section 100(1)(d)(iv) is as follows:--

Section 100(1) subject to the provisions of Sub-section (2) if the High Court is of opinion-

xxxxx

(d) that the result of the election, in so far as it concerns a returned candidate has been materially affected -

xxxxx

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void

27. The contention of the petitioner runs thus Under Rule 90 (2) of the Conduct of the Election Rules, 1961, the total of the expenditure of which account is to be kept under Section 77 and which is incurred in connection with an election in any one Assembly constituency shall not exceed Rs. 7000 in Orissa. The respondent showed a sum of Rs. 5041-50P in the account of his election expenses and did not mention Rs. 3100 spent over 30 canvassers, as already stated If this amount had been shown the total expenditure would have been more than Rs. 7000 which is a corrupt practice under Section 123(6). The respondent spent in the constituency more than the prescribed amount and the result of the election, as it concerned him, had been materially affected by his non-compliance with the provisions of the Act and the Rules and his election is to be declared void also under Section 100(1)(d)(iv).

77 (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof both dates inclusive.

(2) The account shall contain such particulars, as may be prescribed.

(3) The total of the said expenditure shall not exceed such amount as may be prescribed.

The true scope of Section 123(6) read with Section 77 of the Act is no longer in doubt. In (1959) 20 ELR 101 (Mys) Venkataramiah v. E. Narayan Gowdam, a Bench of Mysore High Court observed thus- It is true that Sub-section (6) of Section 123 speaks of the contravention of Section 77 and not of Sub-section (3) of Section 77 But it must be remembered that what it prohibits is the incurring or authorising of expenditure in contravention of Section 77 and not the method and manner of maintaining accounts Section 77(1) says that an amount of the expenditure incurred or authorised in connection with the election should be maintained: Section 77(2) provides for rules to be framed prescribing the particulars of the account to be maintained. It is only Section 77(3) which deals with incurring or authorising of expenditure and plain readme of Section 77 in conjunction with sub-section (6) of Section 123 makes it clear that what is hit by the latter provision is the contravention of Section 77(3) and not the contravention of Sub-sections (1) and (2) of Section 77. If we read Sub-section (6) of Section 123 in any other manner it will mean that we are ignoring the words 'incurring or authorising' found in that section as if they are a surplusage. To interpret in that manner is to run counter to well established canons of interpretations.'

I am in respectful agreement with the a foresaid observations.

29. The question for examination in this regard is whether the respondent incurred an expenditure more than Rs. 7000 relating to his election in the Nawapara constituency. The petitioner placed reliance on the evidence of Durjyodhan Bag (P.W. 1), Abadram Sahu (P.W. 2), Paramanada Sahu (P.W. 6), Padumram Sahu (P. W. 7). P. W. 8, P. W. 9, Gendram Sahu (P.W. 10) and Punaram Maihi (P. W 12). R.Ws. 9 and 20 deny engagement of canvassers on payment. In Para 9 of his deposition R.W. 20 states that Congress supporters, some influential persons and active members worked in a missionary spirit and wanted to see that Congress candidate must succeed. In Para 14 he stated that those worked for him during election were very influential and well-to-do men who would not be accepting money towards wages. He asserted that Manurakhan Majhi, Bahadur Majhi, P. W. 12. Kunjabehari Sahu, P.W. 9, P.W. 6, Mochanlal Soni and Davanidhi Sahu were working for Swatantra party, and not for the Congress party In Para 18, he denied payment to canvassers at the rate of Rs. 75 each per month and a daily allowance of one rupee. He states that he has suppressed no expenses.

30. I would proceed to examine how far the evidence of the witnesses examined by the petitioner is acceptable. (After discussion of their evidence. His Lordship summed up as follows):

To sum up, the petitioner has failed to establish beyond reasonable doubt that the respondent spent Rs. 3100 on the remuneration of the canvassers. There are no materials to hold that the respondent incurred election expenses more than the prescribed limit and that the expenses on this head were not mentioned in the account of election expenses.

On the aforesaid discussion no corrupt practice was resorted to under Section 123(6) of the Act There was no non-compliance with the provisions of the Act or of the Rules. The question whether the result of the election in so far as it concerns the returned candidate has been materially affected does arise. Respondent's election cannot be declared void under Section 100(1)(d)(iv) of the Act or under Section 100(1)(b) on this count.

Issue No. (ii) is accordingly disposed of.

31. The aforesaid findings disposed of all the allegations in the election petition. Certain other allegations have been referred to in the depositions of witnesses and on their basis Mr. Mohanty contends that the election of the respondent is to be declared void under Section 100(1)(d)(iv) of the Act.

This contention requires careful examination

32. Mr. Mohanty contends that the following items of expenses incurred during the election by the respondent have been omitted from the account of the election expenses. Those items are-

(i) Hire charges of the Jeep O. R. Section 121, belong to the paternal uncle of R. W. 1, which was used by the respondent during election;

(ii) Petrol expenses and hire charges for the two jeeps belonging to Sri Anupsingh Deo used for a month during election one at a time.

(iii) the expense of Rs. 265 incurred by R.W. 4 out of the Congress funds in the Nawapara constituency;

(ix) Expenses incurred on the head 'contingency' such as, postage and purchase of celluloid badges etc.:

(x) The amount of Rs. 25 spent from the pocket of R.W. 1 during canvassing;

(xi) Travelling expenses incurred for purchase of flags and sample ballot papers; and

(xii) Hire charges of the house of Ratan Maharai for holding election office

It is contended by Mr. Mohanty that expenses under these items added to Rupees 5041-50 returned by the responded would bring his total expenditure during election above Rs. 7000. This is a corrupt practice under Section 123(6) and respondent's election is void both under Sections 100(1)(b) and 100(1)(d)(iv).

33. On the aforesaid contention the following points arise for determination -

(i) Assuming that these expenses were incurred, is the respondent bound under Section 77(1) of the Act to include all those in his account of election expenses?

(ii) Is this contention permissible to be raised in the absence of pleadings merely on the basis of some evidence led on those points?

(iii) If the expenses so incurred together with those returned do not exceed Rupees 7000 has the result of the election so far as it concerns the respondent been materially affected by the omission to include such expenses in violation of Section 77(1)? If so, is the election void under Section 100(1)(d)(iv)

(iv) Were these expenses incurred in fact?

34. The first point centres round Section 77(1) which has already been quoted. It prescribes that the candidate shall keep a separate and correct account of all expenditure in connexion with election, provided it is either incurred or authorised by him or by his election agent between two specified dates. If an expenditure is done in connexion with the election, but the same has not been incurred or authorised by the respondent or his election agent (R.W. 1), an account of the same is not to be kept under the subsection An illustration may make the position clear. Suppose, R. W. 4, who went to supervise the election on behalf of the P.C.C. incurred certain expenditure during election. The candidate is to keep an account of such expenses only if he had authorised R.W. 4 to incur such expenditure. A particular political party may spend some money to advance the interest of the party and not for the candidate. Such expenses are neither incurred nor authorised by the candidate. An account of such expenses is not to be kept under Section 77(1). The various items of expenditure relied upon by Mr. Mohanty must be tested in the light of the aforesaid dictum.

Judged by the aforesaid tests, there is no pleading or proof that items of expenses in (ii) to (iv), (vi) and (viii) in Para 32 supra, were authorised either by the respondent or by R. W. 1. Assuming that such expenses had in fact been incurred, the respondent was not to include them under Section 77(1) in his account of election expenses.

35. The second point is whether the petitioner can in the absence of any pleading be permitted to raise a contention on the basis of the omission of the aforesaid expenses, merely because some evidence was led on those points. This requires an examination of the scope and ambit of Section 83 of the Act, which runs thus so far as is relevant-

''83. (1) An election petition -

(a) shall contain a concise statement of the material facts on which the petitioner relies:

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice:

x x x x x

The election petition is completelybereft of any averment on the aforesaiditems. It is possible to visualise that thematerial facts were pleaded but the fullparticulars were omitted so that the Courtcould examine if on the evidence a findingcould be recorded without causing prejudiceto the respondent.

A distinction must be made between 'omission to state material facts' and 'omission to give full particulars'.

If material facts are omitted a party should not be allowed to raise a contention on a particular point even if some materials are available in the evidence. If, on the other hand, material facts have been pleaded, but full particulars have not been given, the Court may permit the points to be raised on the basis of evidence unless thereby the respondent is materially prejudiced. The first relates to a question of jurisdiction and the second to one of procedure (see AIR 1960 SC 200, Bhagwan Datta v. Ramratan Jee; AIR 1960 SC 770, Balwan v. Lakshmi Narain and (1961) 22 Ele LR 358 (SC), Abdula Hamid Chowdhury v. Nanigopal).

In this case, material facts were not pleaded There was absolutely no reference to any of these items of expenditure, much less to sufficient particulars. Whether it relates to a question of jurisdiction or not, to permit the petitioner to raise the contention that the election is void either under Section 100(1)(b) or under Section 100(1)(d)(iv), would be causing serious prejudice to the respondent. That the prejudice would be a serious one is manifest from the fact that not only should the petitioner have pleaded that such expenses were omitted from the account of election expenses, but that the result of the election was materially affected so far as it concerned the returned candidate. In what manner the result was materially affected is to be pleaded and the respondent cannot be taken by surprise by mere speculation and make-shift calculation.

It is to be further noted that the original election petition was allowed to be amended. The petition was filed on 7-4-67 while the trial began on 27-9-67 about 5.1/2 months after The petitioner could have filed an amendment application to plead the aforesaid facts so as not to take the respondent by surprise merely at the stage of evidence. At different stages Mr. Sahu put in objections to such evidence which have been noted in the deposition. I accordingly hold that the aforesaid contention is not permissible.

36. So far as the third contention is concerned, there is no pleading or proof that the result of the election, so far as it concerns the respondent, would have been materially affected if the aforesaid items of expenditure had in fact been incurred and would have been included in the account of election expenses If need hardly be said that if these items of expenditure added to the returned expenses would exceed Rupees 7000, then a corrupt practice under Section 123(6) is committed. If items (ii) to (iv). (vi) and (viii) are not to be included in the account of election expenses then the total expenditure would not exceed Rs. 7000 even though the rest of the items are accepted to have been proved.

Proceeding on the assumption that the rest of the items of expenditure had in fact been incurred, the election is not to be declared void under Section 10(1)(d)(iv) unless there is proof that the result of the election, so far as it concerns the respondent, was materially affected. Nothing has been shown as to how the respondent would not have got 677 votes in excess if these items of expenditure had not been incurred. The correlation between the two must be integral and intimate. There is neither pleading nor proof of the causal connexion. No such conclusion can be reached merely on the basis of speculation. The election of the respondent cannot be declared void under Section 100(1)(d)(iv).

37. On the conclusion that even if the aforesaid expenses had been incurred, there is no evidence that the result of the election was materially affected so far as the respondent was concerned, it is not necessary to examine if in fact those expenses were incurred.

38. The contention raised in Paragraph 32 on which there was no pleading or issue is rejected.

39. Issue No. (iii) -- On the finding in Paragraph 20 supra, that the respondent resorted to corrupt practice of bribery under Section 123(1)(A)(b), his election is void under Section 100(1)(b) and is declared to be so void under Section 98(b). Section 98(b) lays down that at the conclusion of the trial of an election petition the High Court shall make an order declaring the election of the returned candidate to be void.

40. Under Section 8A, a person found guilty of a corrupt practice, by an order under Section 99, shall be disqualified for a period of six years. I have already found that corrupt practice of bribery has been proved to have been committed by the respondent at the election. I accordingly pass an order under Section 99(v)(a)(i) that the respondent is disqualified for a period of six years.

41. In the election petition the petitioner made a prayer that he should be declared to have been duly elected to the Orissa Legislative Assembly from the Nawapara constituency. This prayer is based on Section 101(b) which runs thus -

'101. If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion-

X XXXX

(b) that but for that votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes,

the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.'

To get relief under this provision, the petitioner shall have to establish that the votes obtained by the respondent by corrupt practice of bribery found against him and further that but for obtaining such votes, the petitioner would have obtained a majority of the valid votes. It is significant that excepting making a bare reference to the ingredients of Section 101(b) in Para. 16 in which the prayer was made, (Sic--(no particulars) (?)) were disclosed. There are no materials on record also to justify a conclusion that but for the corrupt practice, the petitioner would have got the majority of the valid votes. Such an inference is not possible merely because the difference between the votes obtained by the respondent and the petitioner is 677. The petitioner has failed to establish beyond reasonable doubt the ingredients of Section 101(b). A conclusion to that effect cannot be reached merely on speculation. This prayer is accordingly rejected and Issue No. (iii) is decided against the petitioner.

42. To sum up, the petitioner fails in all his contentions excepting the one relating to the allegation made in Para 11 of the petition. As has already been stated, the election of the respondent is declared void and is disqualified for a period of six years as prescribed in Section 8A.

43. In the result, the election petitionsucceeds and is allowed with costs. Thetrial covered a period of full twenty twodays. Hearing fee of Rs. 1000 (rupees onethousand).